Birss:
Accreditation for expert witnesses beyond the existing MedCo scheme in personal injury could be “worthy of consideration”, the deputy head of civil justice has said.
Lord Justice Birss also said guidance for experts on artificial intelligence (AI) might be needed, similar to the judicial guidance which already exists.
Speaking at the recent Expert Witness Institute (EWI) conference, Birss LJ said that “despite the best efforts of all concerned” expert evidence still had a tendency “to take up a great deal of time and cost, very often more than is sensible”.
He said the rule against calling more than one expert was a good one, but there was “much more to do on this”.
A “much rarer” but equally important problem was “poor expert evidence which is inadequately challenged”.
Birss LJ said the use of professional expert witnesses “might be part of a way” to address both problems.
In the personal injury and medical negligence world, there were some “essentially professional expert witnesses”.
There were “similar professionals” operating in construction and in forensic accountancy and “in contexts like this” bodies like the EWI could “usefully work” to improve standards.
However, in other areas of the law such as patents, “many experts” did not know how to fulfill the role. “They will never have done it before and may very well never do it again.”
He went on: “We already have a scheme in personal injury for accrediting certain experts using the MedCo scheme.
“It is hard to see how one could have a similar accreditation scheme for experts in the growth of Bordatella pertussis [which causes whooping cough], but that does not mean one could not consider whether further forms of expert accreditation might not be worthy of consideration.”
Birss LJ said AI could be “handy for reminding you of something you knew but had forgotten” but was “a poor and unsafe tool” for finding the answer to a question you did not know and could not recognise as correct.
“We all make mistakes but blaming AI for a mistake in your expert’s report is no excuse.”
On disclosure and AI, Birss LJ drew a distinction between using AI to “fish out potentially relevant material from disclosure already given by the other party” and advancing a point “which made the method of searching itself relevant”, in which case the use of AI should be mentioned.
“But just as we have judicial guidance, so there might be need for similar guidance for experts.”
Birss LJ, who is deputy chair of the Civil Justice Council, said it was now looking at “whether there need to be rules relating to the use of AI in the preparation of court documents – like pleadings, witness statements and expert’s report”.
The judge added, on the contentious issue of the page limit for expert evidence for intermediate track cases, that 20 pages, excluding photos, plans and technical articles, “really should not be a problem”.
In the Court of Appeal there was an “equivalent provision”, which applied across the board, limiting skeleton arguments to 25 pages.
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